1 Statute Law and Common Law 1

viü Contents 7 Torts 128 1 Statute law and common law 1_. The _Iiability ~or tort. 2. General conditions ofliability (mtentiOn, mottve and malice. Negligencc. Liability wirhaut intention or negligence. Darnage and damages). 3. Termination of liability (Death of eirher pany. Limitation of actions). 4. Specific torts (Wrongs to personal safety and liberty. Defamation. Abusc of legal proceedings. Interference with family and contractual relations, business and employment. Fraud. Torrs in respect of property). 8 Crimes 146 1. LAW AND LAWS. We commonly speak ofbothlaw andlaws-the 1. Sources of criminallaw. 2. Civil and criminallaw cantras red. English Law, or the Laws of England; and these terms, though 3. Classi:fication of crimes and offences. 4. General principles. 5. High not used with precision, point to two different aspects under treason. 6. I~citement to disaffection. 7. Unlawful assembly and riot. which legal science may be approached. The laws of a country are 8. Preservatmn of order on the occasion of public processions and thought of as separate, distinct, individual rules; the law of a public meetings. 9. Libel, sediüon, andobscenity. 10. Homicide. 11. Offences againsr properry. country, however much we may analyse it into separate rules, is something more than the mere sum of such rules. lt is rather a Notes 163 whole, a system which orders our conduct; in which the separate Further reading 166 rules have their place and their relation to each other and to the Index whole; which is never completely exhausted by any analysis, how 171 ever far the analysis may be pushed, and however much the analy sis may be necessary to our understanding of the whole. Thus each rule which we call a law is a pan of the whole which we call the law. Lawyers generally speak of law; laymen more often of laws. There is also a more precise way in which we use this distinc tion between law and laws. Some laws are presented to us as having from the beginning a separate and independent existence; they are not derived by any process of analysis or development from the law as a whole. We know when they were made and by whom, though when made they have to take their place in the legal system; they become parts of the law. Such laws in this country are for the most part what we call Acts of Parliament, or, as they are called generally by lawyers, statutes; collectively they are spoken of as Statute Law. On the other hand, putting aside for the present the rules of Equity, the great body of law which is not Statute Law is called the Common Law. The Common Law has grown rather than been made. We cannot point to any definite time when it began; as far back as our reports go we find judges assuming that there is a Common Law not made by any legislator. When we speak of an individuallaw we generally mean a statute; when we speak of the law we are thinking of the system 2 Statute law and common law The relations between stalute law and common law 3 of law which includes both Statute and Common Law, perhaps (2) Where Statute Law and Common Law come into compe more of the latter than of the former. A rule of the Common Law tition, it is the former lhat prevails. Our law sets no Iimits to the would rarely, if ever, be spoken of as a law. power of Parliament. 'The sovereignty of Parliament is (from a This distinCtion between law as a system and law as enactments legal point of view) the dominant characteristic of our political is brought out more clearly in those languages which use different institutions. '1 No court or judge can refuse to enforce an Act of words for each: the French droil, the German Recht, mean 'law': Parliament, though in the exercise of its duty to interpret an Acta loi and Gesetz mean 'a law'. court may sometimes alter considerably the effect that the legis 2. THE RELATIONS BETWEEN STATUTE LAW AND COMMON lators bad intended the Act to have. No development of the LAW. (1) In spite of the enormous bulk of the Statute Law-our Common Law can repeal an Act of Parliament. The Common statutes begin with the reissue of Magna Carta in 1225 in the reign Law cannot even correct its own defects by taking away what it of Henry III, and a !arge volume is now added every year-the has once finally laid down. Thus !arge parts of the Common Law most fundamental part of our 1aw is still Common Law. No have from time to time been abolished by Act of Parliament, and statute, for instance, yet prescribes in general terms that a man their place has been taken by statutory rules. must pay his debts or perform his contracts or pay damages for This supremacy of the statute-making power is not a logical or trespass or libel or slander. The statutes assume the existence of even a practical necessity. It is weil known that under the Consti the Common Law. Except in so far as they resrate in the form of a tution of the United States neither Congress nor the Stare Legisla code some particular branch of the law, they are the addenda and tures have an unlimited power of legislation. The unlimited legis errata of the book of the Common Law; and they would have no lative power of Parliament is a rule of our Constitutional Law. It meaning except by reference to the Common Law. If all the is _quite conceivable, and it was at one time supposed _to be the Statutes of the realm were repealed, we should still have a system case, that there were principles of the Common Law wh1ch would of law, though, it may be, an unworkable one; if we could control an Act of Parliament. We read in a seventeenth-century imagine the Common Law swept away and the Statute Law report: preserved, we should have only disjointed rules torn from their context, and no provision at all for many of the most important It appears in our books that in many cases the Common Law will ~ontrol relations oflife. The Law Commissions Act 1965, however, estab Acts of Parlia.ment and sometimes adjudge them to be utterly vmd; for lishes a body of Commissioners whose task it is to prepare legis whenever an Act of Parliament is against right and reason or repugnant or impossible to be perfonned, the Common Law will control it and lation which shall reform and simplify the law, and the Commis adjudge such Act tobe void. sioners-stated, in announcing their first programme ofwork, that they intended to prepare a codilication of the laws of conttact and There is a faint echo of this view in Blackstone's Commentaries of Iandlord and tenant. These major codes have not yet been (1765), i, p. 41; but this passagein the Garnmentaries is hardly con completed (the Annual Report of the Law Commission for 1972-3 sistent with what the author later says about the legislative power states that work on the preparation of a code of the law of con ofParliament (ibid., i, pp. 160-1). In fact the lawyers have, from tract has been suspended, and so it is now doubtful whether it will an early period, recognized and acquiesced in the sovereignty of 2 ever be completed), but certain codes dealing with more restricted ParJiament. areas of law have been enacted in recent years, e.g. the Theft Act There are of course obvious practical limitations upon the 1968, the Animals Act 1971 and the Forgery and Counterfeiting power ofParliament, andin particular it is doubtless highly desir Act 1981. The work of the Law Corninission has in recent years able since the United Kingdom's entry to the European Commuru also led to much obsolete legislation being repealed. For example, ties in 1973 that Parliamentary legislation should accord with the much of the old Sunday Observance legislation was swept away needs, not only of this country, but also of our European part by the Statute Law (Repeals) Act 1969. ners. The courts wiH also not infrequently interpret statutes m such a way as to be in line with modern needs, which may differ 4 Statute law and common law Tlw relations between statute law and common law 5 from those in existence when the Acts were passed. But there is interpretation, and his decision will be a binding authority for all no modern instance of any. coun denying that it is in fact and in future cases in which the same question arises, just as we shall see law absolutely bound by any Act which has not been repealed by Parliament itself. that a judge's decision is a binding authority for future cases where a question arises as to the Common Law. In this way many (3) How da we know the law? Here there is a great difference statutes-especially the older ones-have become overlaid with a between Statute and Common Law. A statute is drawn up in a mass of judicial interpretation which cannot be departed definite form of words, and these words have been approved by from. Parliament and have received the Royal assent. In general there is On the other hand, we have no authoritative text of the no difficulty in ascertaining the words of a statute. At the present Common Law. There is no one form of words in which it has as a day two identicaJ printed copies are made, each bearing a certifi whole been expressed at any time.

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